Hunter Valley home deal to proceed, court rules

The largest residential development in NSW is set to go ahead after the NSW Court of Appeal overturned a ruling that the rezoning of the Hunter Valley site by former planning minister Tony Kelly was invalid.

The decision on the controversial $1.5 billion Huntlee development near Branxton will have major legal implications for other developments in the state, potentially reducing the amount of money developers have to set aside upfront for social and ­environmental contributions.

The project for 7500 homes by LWP Property Group and wealthy pastoralists the Kahlbetzer family was twice blocked in court following challenges by the local Sweetwater Action Group. The first was in 2009 when the Land and Environment Court ruled that land swap deals arranged as part of various projects in the area amounted to bribes.

A second proposal was approved last year by Tony Kelly, but in July this year the NSW Land and Environment Court ruled the rezoning process did not follow correct ­procedure.

But in today’s judgment the NSW Court of Appeal upheld the site’s rezoning, allowing it to progress towards the first stage of the project, which involves building 2000 homes.

“It’s a relief," LWP Property Group managing director Danny Murphy said. “It vindicates the long road we’ve taken to get to this point."

The court made a judgment on two simultaneous appeals – one by Huntlee Pty Ltd and the other by the NSW Minister of Planning and Infrastructure,
Brad Hazzard
. Both parties “argued for the same result and essentially covered similar ground", according to the judgment. The decision has major implications for how both parties do their jobs.

Developer lobby groups said other NSW projects had been put on hold awaiting the judgment, which means developers no longer have to pay upfront for infrastructure or conservation to offset a project’s impact.

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Sweetwater argued that all the funds for these commitments should be put down as bank guarantees before a development is approved.

But the court found registration of the agreement on the title, which would be transferred to a new developer if the project is on-sold, was sufficient.

Chris Johnson from developer lobby group the Urban Taskforce said it was “ludicrous" for a developer facing a 15 year project to put the cost of all contributions down upfront, even if they were scheduled to happen 10 years into the project. “We are supportive of a decisions that enables this to be staged as development occurs," Mr Johnson said.

A second ramification of the case is that the planning minister can make recommendations on the making of a policy without fear of court action.

The Sweetwater Action Group is spearheaded by Cessnock councillors Chris Parker and James Ryan. Mr Parker said the group was “still viable" despite the court ordering it pay the legal bills of the Minister for Planning and LWP, because the cases were largely funded with public money. Each of two actions in the Land and Environment Court cost Legal Aid NSW “over $100,000", he said.

He said the group would continue to oppose the project through lobbying government and putting in submissions when the concept plan goes on public exhibition. But he ruled out a High Court challenge.

“We’re not giving up," Mr Parker said. “We’re still continuing to promote the idea that the development is not sustainable environmentally or socially."

The development will house 20,000 people and is the first new town in the Hunter for 50 years. But it has long been controversial. It was ranked last on a list of suitable sites before Duncan Hardie of Hardie Holdings took it up with the help of lobbyist Graham Richardson.